Employers can’t refuse workers’ right to discuss arbitration: Judge

Posted On: Mar. 25, 2019 2:05 PM CST

Judy Greenwald

Forbidding employees from discussing the results of their arbitrations violates the National Labor Relations Act, says an NLRB administrative judge, in a ruling that disagrees with the agency’s general counsel.

In May 2016, Pfizer announced to its employees that if they continued to work for the company, they in effect agreed to arbitrate disputes, according to Thursday’s ruling by administrative law judge Keltner W. Locke in Pfizer Inc. v. Rebecca Lynn Olvey and Jeffrey J. Rebenstorf.

The two employees filed unfair labor practices charges against Pfizer. While Judge Locke initially ruled in the workers’ favor, he reversed his decision for much of the case following the U.S. Supreme Court’s ruling in Epic Systems v. Lewis, which upheld the legality of class action waivers in mandatory arbitration agreements.

However, one remaining allegation concerned the agreement’s “confidentiality clause,” which requires parties to “maintain the confidential nature of the arbitration proceeding and the award.”

Both Pfizer and the NLRB general counsel maintained the confidentiality clause was lawful. Judge Locke disagreed in a 52-page ruling.

Judge Locke referred in his decision to Section 7 of the NLRA, which gives employees the right to engage in concerted activities for mutual aid or protection.

Under that section, “employees have the right to discuss with each other all their terms and conditions of employment, including arbitrations, to disclose those terms and conditions to the public and to ask for the public’s support in changing them for the better,” said the ruling, which requires Pfizer to deliver a notice to its employees that it had violated the NLRA on this issue.

Pfizer said in a statement, “We disagree with the Administrative Law Judge’s decision, which is not a final agency decision and is subject to review by the National Labor Relations Board (NLRB).

“We intend to ask the NLRB to review this decision because it is contrary to the Supreme Court’s decision in Epic Systems as well as the NLRB’s own standard for interpreting confidentiality provisions.

“In fact, the NLRB’s General Counsel, who argues the position of the NLRB, argued in its own court filing on this matter that the confidentiality provision is lawful.”

The employees’ attorney and a spokesman for the NLRB general counsel could not immediately be reached for comment.